Authors of Social Security Believed It Was Unconstitutional

Mitt Romney may believe Social Security is constitutional, but he would have a hard time convincing some of the people who pushed the Social Security Act into law.

As I wrote in my book, "Control Freaks," some of the main players involved in creating Social Security believed it was unconstitutional -- and for good reason.

Yet, for them, not unlike many in today's Washington, the ultimate questions were not: Is this good for the long-term future of the country, and does Congress have authority to do it? They were: Will this serve our immediate political interests, and can we get away with it?

It is important to note that neither Perry nor any other contemporary Republican leader is calling for the abolition of a program that has been in place for more than seven decades.

But was it founded on a sound constitutional basis? Is there anything to be learned from how it was forced through?

Thomas H. Eliot, a future Harvard Law professor, served as counsel for the Committee on Economic Security, the body that President Franklin Roosevelt created to draft the Social Security Act.

In 1961, 26 years after the bill was enacted, Eliot gave a speech at the Social Security Administration in which he said he was relieved he had never been called to testify about the constitutionality of the "old-age insurance" provision in the bill.

"The opponents rallied as soon as the bill was introduced," said Eliot. "Those opponents were spearheaded by the U.S. Chamber of Commerce and the National Association of Manufacturers. Counsel for the latter, John Gall, made effective and strong arguments against that phase of the bill (old-age insurance). He questioned the constitutionality of the bill.

"These arguments I found rather difficult to refute," said Eliot, "and I'm glad I wasn't really called upon to do so as a witness before the committees of Congress because I had very grave doubts at that time about the likelihood of the Court's upholding the old-age insurance section of the bill."

Edwin E. Witte was executive director of Roosevelt's Committee on Economic Security. In 1955, he gave a speech to commemorate the 20th anniversary of the Social Security. "And at all stages there hung over the Social Security bill uncertainty as to its constitutionality," Witte said. "These doubts were increased during the pendency of this bill in Congress by the decision of the Supreme Court holding the Railroad Retirement Act to be unconstitutional."